In a recent circular dated 11^th March 2019 issued by the Ministry of Corporate Affairs (“MCA”) the MCA has clarified that Regional Directors are advised to process e-form RD-1[for to be filed with the Regional Director for Converting a public company into private company and application for change in ‘Financial Year’], if ‘others’ is selected, till the revised form is deployed by MCA.

MCA has also clarified that such applications filed in e-form No. RD-1 should not be rejected merely on the ground that “others” is selected and “eform is not available”, till the said form is deployed by this Ministry.

Background

Previously, MCA had issued the Companies (Incorporation) Fourth Amendment Rules, 2018 whereby the applications under section 2(41) relating to change in a financial year and under section 14 relating to conversion of public limited company to a private limited company along with e-form RD-1 are to be processed by Regional Directors.

The stakeholders had expressed certain difficulties in filing e-form RD-1 on account of applications filed under section 2(41) and Section 14, pending deployment of revised version of e-form RD-1.

Application under section 14 for conversion of public company into private company must be filed with Regional Director in e-Form No. RD-1 along with the fee as provided in the Companies (Registration Offices and Fees) Rules, 2014 along with the following documents:

• A draft copy of Memorandum of Association and Articles of Association, with proposed alterations including the alterations pursuant to sub-section (68) of section 2
• A copy of the minutes of the general meeting at which the special resolution authorising such alteration was passed together with details of votes cast in favour and or against with names of dissenters
•  A copy of Board resolution or Power of Attorney dated not earlier than thirty days, authorising to file application for such conversion.
• Declaration by key managerial personnel that pursuant to the provisions of sub-section (68) of section 2, the company limits the number of its members to two hundred and also stating that no deposit has been accepted by the company in violation of the Act and rules made thereunder
• Declaration by key managerial personnel that there has been no non-compliance of sections 73 to 76A, 177, 178, 185,186 and 188 of the Act and rules made thereunder.
• Declaration by a key managerial personnel that no resolution is pending to be filed in terms of sub-section (3) of section 179 and also stating that the company was never listed in any of the Regional Stock Exchanges and if was so listed, all necessary procedures were complied with in full for complete delisting of the shares in accordance with the applicable rules and regulations laid down by Securities Exchange Board of India.

Provided that in case of such companies where no key managerial personnel is required to be appointed, the aforesaid declarations must be filed by any of the director.

MCA has therefore clarified and advised the Regional Directors are advised to process e-form RD-1 for the above-mentioned reasons if ‘others’ is selected on account of aforesaid two counts till the revised form is deployed by MCA.

Source: Ministry of Corporate Affairs

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